Citation Nr: 1042513
Decision Date: 11/12/10 Archive Date: 11/24/10
DOCKET NO. 07-06 893 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Montgomery,
Alabama
THE ISSUE
Entitlement to service connection for asbestosis.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
Carolyn Wiggins, Counsel
INTRODUCTION
The Veteran served on active duty from March 1968 to March 1970.
This appeal arises from an August 2006 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Montgomery, Alabama.
FINDINGS OF FACT
1. The Veteran's military occupational specialty was fire
fighter, and he worked for 12 years post service as a welder.
2. The Veteran was exposed to asbestos on occasions fighting
fires during his 2 years of active service, and for 12 years post
service as a welder on nearly a daily basis.
3. The only competent evidence addressing the likely asbestos
exposure to which any current asbestosis is linked, indicated a
nexus to post service exposure.
CONCLUSION OF LAW
Asbestosis was not incurred in service. 38 U.S.C.A. § 1110 (West
2002); 38 C.F.R. § 3.303 (2010).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The Board must first address VA's duty to notify and assist
claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002
& Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)
(2010).
The Veteran submitted his claim for service connection for
asbestosis in March 2006. The RO sent him a letter in April 2006
which explained what was needed from him, how VA could help, what
the evidence must show to support his claim, and how VA
determines effective dates and disability ratings.
The Veteran's service treatment records were obtained. He
submitted copies of private records. A VA examination was
conducted in June 2006 and a review in April 2007. The claims
folder contains medical opinions.
No further notice or assistance to the Veteran with his claim is
necessary.
Service Connection
To establish service connection for a claimed disability, the
facts as shown by evidence must demonstrate that a particular
disease or injury resulting in current disability was incurred
during active service or, if preexisting active service, was
aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002).
Service treatment records do not include any references to or
diagnosis of asbestosis. Although acknowledging post service
asbestos exposure, the Veteran contends he was exposed to
asbestos in service which resulted in the later development of
asbestosis.
The Veteran's service personnel records including his DD Form 214
reveal he was a fire fighter in service. In his May 2006
statement the Veteran reported he was exposed to asbestos in
service in Vietnam and at Fort Rucker during crash and rescue
operations, and from entering burning buildings.
The Veteran submitted copies of pulmonary function testing, and a
report of a chest X-ray from September 1994. The X-ray report
included the diagnostic impression that it was consistent with
asbestosis.
A VA examination was conducted in June 2006. The Veteran
reported he served as a fire fighter in Vietnam where he
participated in search and rescue after helicopter crashes.
While at Fort Rucker he participated in fighting four fires,
during which the walls were ripped and asbestos insulation was
exposed. After service, he reported he was employed as a welder
for 12 years, and that as a result of asbestos exposure in that
occupation was advised to be screened for asbestosis. He
reported going to an industrial pulmonologist in Mississippi
where asbestosis was diagnosed. (This is understood to be a
reference to the 1994 documents the Veteran submitted with his
claim.) He had also worked as a heavy equipment truck driver,
and had a sixty pack year history of smoking. Examination
revealed his lungs were clear to auscultation and percussion with
no wheezing, rhonchi or rales. No adventitial sounds were heard.
Pulmonary Function testing revealed severe air flow obstruction,
and a mild restriction in lung volumes. Chest X-rays revealed
the lung fields were considered clear. The diagnostic impression
included the following:
Asbestosis, occupationally as a welder. His exposure
to asbestos described during his military service in
my opinion was not sustained for a period of time, nor
significant enough to have significant additional
impact over that of his occupational exposure.
Ongoing tobacco abuse was also noted.
In April 2009, the VA physician who conducted the 2006
examination reviewed the record and re-characterized her
diagnoses in pertinent part to the following:
Asbestos, history of, exposure sporadic in the
military, longer exposure in occupation as a welder.
His chest x-ray shows no asbestos-related changes and
his pulmonary function tests reveal severe airflow
obstruction most likely secondary to longstanding
tobacco abuse.
Chronic obstructive pulmonary disease with severe
airflow obstruction by pulmonary function tests most
likely secondary to longstanding tobacco use disorder.
On this record, it is not clear the Veteran actually has
asbestosis. Assuming he does, the only competent evidence
addressing the mostly likely source of the Veteran's exposure to
asbestos that produced asbestosis found it to be in his post
service work as a welder. There is an obvious logic to this, as
the Veteran reported only 4 episodes of potential exposure in
service at Fort Rucker structure fires, versus daily exposure for
12 years post service as a welder. (The potential for asbestos
exposure during search and rescue following helicopter crashes is
not obvious, but even assuming asbestos exposure in that context,
it is insignificant compared to daily exposure as a welder for
more than a decade.)
Although VA manuals acknowledge that even brief asbestos exposure
can subsequently cause asbestosis, the Veteran is not competent
to offer an opinion as to the likely exposure that produced his
disability. That is a determination requiring medical expertise.
The only medical opinion addressing the question, concluded any
asbestosis was more likely the result of post service
occupational asbestos exposure.
As the greater weight of the evidence is against the conclusion
the Veteran has asbestosis related to military service, a basis
upon which to grant service connection has not been presented,
and his appeal is denied.
In reaching this decision, the Board also notes that the Veteran
also has a diagnosis of chronic obstructive pulmonary disease.
This, however, has been attributed to tobacco abuse, and current
law prohibits compensation for disability attributable to use of
tobacco products during service. Thus, there would be no basis
on this record for awarding service connection for chronic
obstructive pulmonary disease.
ORDER
Service connection for asbestosis is denied.
____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs